International & G. N. R. Co. v. Howell

• Court: Texas Supreme Court
• Writing for the Court: Williams
• Citation: International & G. N. R. Co. v. Howell, 111 S.W. 142, 101 Tex. 603 (Tex. 1908)
• Decision Date: 03 June 1908
• Parties: INTERNATIONAL & G. N. R. CO. v. HOWELL et al.

Page 142

111 S.W. 142

INTERNATIONAL & G. N. R. CO. v. HOWELL et al.

Supreme Court of Texas.

June 3, 1908.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Aline Howell and others against the International & Great Northern Railroad Company. A judgment for plaintiffs other than Mrs. Nannie Howell was affirmed by the Court of Civil Appeals (105 S. W. 560), and defendant brings error. Affirmed.

Jno. M. King and Dean, Humphrey & Powell, for plaintiff in error. Hill, Williams & Elkins, for defendants in error.

WILLIAMS, J.

An application for a writ of error in this case was refused, and afterwards, on motion for rehearing, was granted, because it was thought that probably the trial court had committed error in refusing the plaintiff in error, who was defendant below, a continuance upon its application. We shall confine our opinion to that question.

The action was originally brought in behalf of Aline Howell, Vannie Howell, and Sullivan Howell, minor children of Henry Howell, by their next friend, George M. Cecil, to recover damages for the negligent killing of Henry Howell by the servants of the defendant. On the day the cause was called for trial the petition was amended so as to allege that the deceased left a widow, Mrs. Nannie Howell, and another child, Edward Howell, the former of whom was non compos mentis, and the latter an infant four years of age, and to ask that the cause might be prosecuted in their behalf, also, by Cecil as next friend. On the same day a plea of intervention was filed in their behalf, by Cecil as next friend, for the same purpose. The defendant answered both the amended petition and the plea of intervention. It also filed an application for continuance in which it called attention to the claim, then first set up in behalf of Nannie and Edward Howell, and asserted that without such amendment no valid judgment could have been rendered against it, and therefore it was not called upon to make the same degree of preparation in defending the action against the original plaintiffs as was required to meet the action as presented after such changes, and "it will work great and irreparable hardship upon the defendant to be forced to trial now to answer demands that had not heretofore been made upon it." The application continued as follows: "This defendant has made no investigation as to the amount which the said Nannie Howell, widow, would have probably hereafter received out of the wages and earnings of the deceased, Henry Howell, and has made no investigation of the loss to the said Edward Howell on account of the death of the said Henry Howell, and it is now wholly unable to rebut any proof or to show the actual pecuniary loss which the said Nannie Howell, widow, and the said Edward Howell, minor, have sustained by reason of the death of the deceased, Henry Howell." The application also asserted that the amended petition claimed damages in behalf of all the children not claimed in the original petition, but the allegations thus pointed out were abandoned by plaintiffs, and this needs no further notice.

It was made to appear upon the hearing of the application that the attorneys for plaintiffs first learned of the existence of the widow and the other child about three days before the filing of the new pleadings, and that they then informed the attorneys for the defendants of the fact, and were told that the latter had known it for about two weeks. No recovery was had in behalf of Mrs. Nannie Howell, but of the $5,000 allowed by the jury the sum of $1,333.33 was apportioned to Edward. The amended pleading unquestionably asserted a new cause of action, and, if the defendant had not answered to it nor appeared, nor had other notice of it, service of process upon it would have been necessary to enable the plaintiffs to proceed to judgment; but the defendant voluntarily waived notice by answering to the new demand set up against it, and was thenceforth in court to respond to them. It, of course, had the same right that defendants generally have to continue the cause upon sufficient grounds, but it is not true, as its counsel seem to contend, that it had the right to a continuance as a matter of law arising merely from the change in the plaintiffs' pleadings without showing a necessity therefor. The contrary has often been held. Railway Co. v. Goldberg, 68 Tex. 686, 5 S. W. 824; Beham v. Ghio, 75 Tex. 87, 12 S. W. 996; Johns v. Northcutt, 49 Tex. 444; Cummings v. Rice, 9 Tex. 527. Rule 16, regulating the practice in the district court, expresses substantially the result of the decisions of this court upon the subject of continuances upon the ground of surprise caused by change in pleadings, and provides that such surprise is to be judged of...